Selecting the Appropriate Expert

The recent decision of the British Columbia Supreme Court in Khudabux v. McClary, 2016 BCSC 1886, highlights the importance of selecting appropriate medical experts in the defence of personal injury claims. In Khudabux, Mr. Justice A. Saunders reviews the pitfalls of relying on expert reports from orthopaedic surgeons to rebut allegations of soft tissue injuries.

In Khudabux, the Plaintiff sought damages for injuries suffered in two motor vehicle accidents. At trial, both parties submitted expert medical reports containing opinion on the extent of the Plaintiff’s injuries and her prognosis. As is common practice, the Defendant submitted an expert report from an orthopaedic surgeon in support of its position that the Plaintiff had suffered only minimal injuries from one of the accidents. Writing generally on the use of the expert reports of orthopedic surgeons to refute soft tissue injury claims, Mr. Justice A. Saunders stated that:

Of course, there may be situations in which such a specialist feels able to offer opinion evidence that sheds light on the nature and scope of such complaints. But it is also the case that a clash between experts pitting an orthopaedic surgeon against a physiatrist, specializing in rehabilitation medicine — or even, as in the present case, against a family physician — can possibly leave counsel in the position of the hoodlum in the film The Untouchables, at the point when he realizes too late that he has brought a knife to a gunfight.

Judge Saunders goes on to discuss his general observation that orthopaedic surgeons have a tendency to provide opinion without qualification, such that their expert reports simply say, in substance, “I have examined this patient, and nothing is wrong with them”. To properly tender expert opinion, orthopaedic surgeons should restrict their findings to their particular field of expertise. In other words, their opinions should really state “I have examined this patient, and I am unable to diagnose any orthopaedic injury”. Judge Saunders suggests that orthopaedic surgeons who fail to restrict their opinions risk creating confusion or the appearance of bias when their opinions contrast with those providing findings of pain and suffering that are found to be genuine.

In Khudabux, the expert opinion of an orthopaedic surgeon was found to contain “no real answers” to the diagnosis of other medical experts, including the Plaintiff’s family physician, of ongoing pain and suffering from soft tissue injuries.

In order to avoid these potential pitfalls, Judge Saunders suggests that defence counsel should:

endevour to understand the scope of expertise held by experts in a particular field, and in particular, any limitations to that expertise;

select only those experts that are qualified to provide an opinion on the relevant issues in the claim; and

ensure that limitation and qualifications in the expert’s opinion are frankly acknowledged in the substance of the report.

Judge Saunders’ comments serve as a warning to insurers, and their counsel, to carefully consider the appropriate expert to use in defending soft tissue injury claims. In particular, defendants may need to rely on physiatrists, or occupational therapists, as opposed to an orthopaedic surgeon for expert reports in these cases. Insurers, and their counsel, defending personal injury claims would be wise to heed Judge Saunders’ advice.